§286 Cases Rejecting Enhancement for Weapon in Drug Offense
5th Circuit reverses firearm increase for lack of proof that defendant or conspirators possessed gun. (286) Defendant pleaded guilty to drug trafficking. At sentencing, the district court found that defendant possessed a firearm during the offense, and therefore added two levels under § 2D1.1(b)(1). On appeal, the Fifth Circuit reversed, finding that the government failed to prove that defendant or his coconspirators possessed the firearm, and that the government had not shown a conspiracy. U.S. v. Sincleair, __ F.4th __ (5th Cir. Oct. 28, 2021) No. 20-10495.
D.C. Circuit reverses firearm increase where defendant was absent when gun was found. (286) During a raid on defendant’s compound in Afghanistan, officers found an AK-47 assault rifle. Defendant was not present during the raid, and the record did not show where in the compound the firearm was found. Defendant was later convicted of drug-trafficking crimes. The district court added two offense levels under § 2D1.1(b) for possession of a dangerous weapon during a drug-trafficking offense. The district court found that defendant was the owner of the compound and was in control of the compound when the raid occurred. On appeal, the D.C. Circuit reversed, finding insufficient evidence that defendant constructively possessed the firearm. U.S. v. Bagcho, __ F.3d __ (D.C. Cir. May 14, 2019) No. 12-3042.
D.C. Circuit rejects additional firearm increase where defendant was also sentenced under §924(c). (286) (330) Defendant was convicted of participating in a large-scale, violent drug distribution business. He received a §2D1.1(b)(1) firearms enhancement for possessing a dangerous weapon during the offense. However, Note 2 to the 2000 version of §2K2.4 provides that, if a sentence under 18 U.S.C. §924(c) “is imposed in conjunction with a sentence for an underlying offense,” the court is “not [to] apply any specific offense characteristic for possession, brandishing, use, or discharge of an explosive or firearm when determining the sentence for the underlying offense.” This is intended to prevent double counting, because §924(c)’s special mandatory minimum sentence, which runs consecutive to the sentence for the underlying offense, already “accounts for any explosive or weapon enhancement for the underlying offense.” Because defendant was sentenced for a §924(c) firearms offense, the D.C. Circuit held that Note 2 barred the additional two-level enhancement. U.S. v. McGill, __ F.3d __ (D.C. Cir. Mar. 1, 2016) No. 06-3190.
5th Circuit reverses relying on testimony from a separate trial for lack of notice. (286)(770) Defendant pled guilty to drug charges. His PSR recommended a § 2D1.1(b)(1) firearm enhancement based on evidence that defendant conspired to commit a marijuana robbery with his neighbor, Alvarado, an alleged drug trafficker. The district judge applied the enhancement over defendant’s objection, relying on his recollection of Alvarado’s criminal trial, in which defendant did not participate. Guideline § 6A1.3(a) requires the parties to “be given an adequate opportunity to present information” to address “any factor important to the sentencing determination [that] is reasonably in dispute.” And Federal Rule of Criminal Procedure 32(i)(1)(C) provides, “[a]t sentencing, the court … must allow the parties’ attorneys to comment on the probation officer’s determinations and other matters relating to an appropriate sentence.” The Fifth Circuit reversed, agreeing with defendant that the district court’s reliance on testimony from a separate criminal trial to enhance defendant’s sentence, without prior notice and where defendant had no actual knowledge, violated the notice requirements of Rule 32 and § 6A1.3. U.S. v. Garcia, __ F.3d __ (5th Cir. Aug. 14, 2015) No. 14-40520.
1st Circuit rejects weapon increase for knife-point robbery of drugs from co‑conspirator. (286) Defendant pled guilty to a drug trafficking conspiracy. The First Circuit rejected a § 2D1.1(b)(1) weapon enhancement based on defendant’s knife‑point robbery of drugs and money from a co‑conspirator. There was no link between the knife and the conspiracy. The robbery was not part of the drug conspiracy; the drugs taken were for defendant’s own use. The robbery did not further the drug conspiracy, but was, in effect, a theft from it. The weapon thus played a role entirely adverse to the “interests” of the conspiracy. Section 2D1.1(b)(1) is not intended to cover every instance in which a drug trafficker possesses a weapon. U.S. v. Lagasse, 87 F.3d 18 (1st Cir. 1996).
2nd Circuit upholds refusal to apply firearm enhancement after vacation of § 924(c) conviction. (286) The district court vacated defendant’s § 924(c) firearm conviction based on the Supreme Court’s decision in Bailey v. United States, 516 U.S. 137 (1995). However, the court rejected the government’s request to apply a § 2D1.1(b)(1) firearm enhancement to defendant’s remaining drug count. The court noted that the gun, which had been found in the wheel-well of the car in which defendant was a passenger, was not in defendant’s possession, as required by § 2D1.1(b)(1). The government argued that under note 3, the presence of the gun provided a sufficient basis for the enhancement, regardless of whether the gun was possessed by defendant. The Second Circuit found it unnecessary to resolve this question since the government never raised it in the district court. The district court did not plainly err in concluding that the government failed to show that the gun was “possessed” by defendant. However, the court strongly suggested that it would reject the government’s interpretation of note 3. The “clearly improbable” language in note 3 deals with the problem of the relationship of the gun to the offense rather than the problem of a gun that is “present” but not “possessed” by the defendant. U.S. v. Ponce, 168 F.3d 584 (2d Cir. 1999).
2nd Circuit directs court to find whether defendants possessed firearm during relevant conduct. (286) Defendants were convicted of conspiring to distribute marijuana between May 1992 and September 1993. The district court applied a § 2D1.1(b)(1) enhancement based on a sawed‑off shotgun seized in March 1992 from an apartment defendants shared with several others. The Second Circuit remanded for the court to make factual findings on whether defendants possessed the gun during relevant conduct. The court did not find whether defendants were involved in drug activity in March 1992, and did not determine whether that activity was part of the same course of conduct or common scheme or plan as the offense of conviction. U.S. v. Ortega, 94 F.3d 764 (2d Cir. 1996).
2nd Circuit says enhancement for use of firearm in drug offense was double-counting. (286) Defendant was convicted of two unlawful firearm possession offenses. Both of the applicable firearm guidelines, section 2K2.1 and section 2K2.2 (1988), provide that if the firearm was used in connection with another offense, the guideline for the other offense should be used if it would result in a higher offense level. The district court found that defendant had used the firearms in connection with a narcotics conspiracy, and sentenced him under section 2D1.1. The 2nd Circuit rejected as double counting an enhancement under section 2D1.1(b)(1) for carrying a firearm during a drug trafficking crime. The narcotics base offense level was applied only through cross-references designed to ensure that the offense level for the weapons offenses adequately reflected the seriousness of the weapons offenses. To add an increment for possessing weapons was tantamount to increasing the sentence because defendant possessed weapons in the course of possessing weapons. U.S. v. Concepcion, 983 F.2d 369 (2nd Cir. 1992).
3rd Circuit reverses § 2D1.1(b)(1) gun increase because of conviction for § 924(c). (286) Defendant was convicted of drug and firearm charges. The Third Circuit held that a § 2D1.1(b)(1) enhancement was plain error because defendant was also convicted under 18 U.S.C. § 924(c). Note 2 to § 2K2.4 plainly prohibits a § 2D1.1(b)(1) enhancement for possession of any firearm, whether it be the one directly involved in the underlying offense or another firearm, even one in a different location if the defendant is also sentenced for using or carrying a firearm in relation to the offense under 18 U.S.C. § 924(c). U.S. v. Knobloch, 131 F.3d 366 (3d Cir. 1997).
4th Circuit holds that sentence for § 922(g) offense may not be enhanced for conduct that resulted in § 924(c) conviction. (286) Defendant pled guilty to carrying a firearm during a drug trafficking crime, 18 U.S.C. § 924(c) and being an unlawful drug user in possession of a firearm, 18 U.S.C. § 922(g)(3). For the § 922(g) conviction, the court followed cross-references in guideline §§ 2K2.1 and 2X1.1 to sentence defendant under the drug trafficking guideline, § 2D1.1, and then applied a § 2D1.1(b)(1) enhancement for his use of a firearm during the drug transactions. Based on Amendment 599, adopted after sentencing, defendant filed a § 3582(c)(2) motion asserting that the § 2D1.1 (b)(1) firearm enhancement was improper under Amendment 599. The Fourth Circuit agreed. It appeared that the Sentencing Commission adopted portions of Amendment 599 in response to an 11th Circuit opinion, U.S. v. Flennory, 145 F.3d 1264 (11th Cir. 1998), in which the defendant pled guilty to violations of § 922(g) and 924(c). The district court computed the § 922 sentence by cross-referencing § 2D1.1, and the Eleventh Circuit upheld the sentence. The commentary to Amendment 599 contrasts Flennory with opinions that have expressly rejected it to avoid imposing multiple enhancements based on the same conduct. It explains that the purpose of the amendment is to avoid duplicative punishments. Thus best inference from this is that the Sentencing Commission intended to repudiate Flennory and provide that a sentence for a § 922(g) offense may not be enhanced based on conduct that also resulted in a § 924(c) conviction. U.S. v. Goines, 357 F.3d 469 (4th Cir. 2004).
4th Circuit says statement did not support firearm enhancement. (286) The sole basis upon which the district court based a § 2D1.1(b)(1) firearm enhancement was a DEA investigation report concerning information provided by Blount. According to the report, Blount, who was incarcerated at the time of the interview, stated that defendant purchased drugs from him during 1991 and 1992 and that Blount saw defendant with handguns “on many occasions.” Blount was not present at the sentencing hearing, nor was the DEA agent to whom Blount spoke. The Fourth Circuit reversed the firearm increase, ruling that the government provided insufficient evidence that defendant possessed a dangerous weapon during any illegal drug activity. Blount’s statement made only two assertions regarding defendant – that defendant was a drug customer of Blount’s, and that Blount saw defendant with handguns many times. The statement did not reveal whether Blount saw defendant when the two were conducting drug transactions, nor did it indicate whether he saw defendant on other occasions. Therefore, the report did not assert that Blount ever saw defendant with a handgun during a drug transaction. U.S. v. McAllister, 272 F.3d 228 (4th Cir. 2001).
4th Circuit rejects firearm enhancement after court reinstated § 924(c) conviction. (286) The district court originally applied a § 2D1.1(b)(1) enhancement after finding that defendant possessed a firearm during the drug conspiracy. The Fourth Circuit vacated the sentence, since it reinstated defendant’s conviction under § 924(c) (1) for carrying a firearm during and in relation to a drug transaction. Note 2 to § 2K2.4 prohibits an increase in base offense level for possession of a firearm if the same conduct served as the basis for a conviction under 18 U.S.C. § 924(c) (1). The record was sufficiently ambiguous that the district court could have relied upon the same conduct underlying the § 924(c)(1) conviction when it increased defendant’s base offense level. U.S. v. Lipford, 203 F.3d 259 (4th Cir. 2000).
5th Circuit remands where court failed to link firearm to defendant or a co-conspirator. (286) Defendant pled guilty to cocaine charges for his role as the broker in a drug deal. Defendant had arranged for the buyer and a confidential informant to obtain cocaine from a truck at the seller’s mother’s house. Defendant met with the buyer and seller at this location during their inspection of the cocaine and negotiation for the sale of the drugs. Police arrived and found over five kilograms of cocaine under the hood of the truck. A later search revealed a loaded handgun inside a small refrigerator in the garage. The Fifth Circuit rejected a § 2D1.1(b)(1) enhancement for possession of a dangerous weapon, because the district court failed to find that defendant possessed the weapon or that a co-conspirator possessed the weapon and that possession was reasonably foreseeable to defendant. The court never connected the handgun to any particular co-participant, which is a prerequisite before the court can find that the co-participant’s possession was foreseeable to defendant. U.S. v. Zapata-Lara, 615 F.3d 388 (5th Cir. 2010).
5th Circuit finds insufficient nexus between defendant and firearms. (286) Two brothers were involved in a large drug trafficking organization. They challenged a § 2D1.1(b)(1) enhancement, claiming an insufficient nexus between the firearms found in a house and their offenses. The Fifth Circuit found a sufficient nexus between one defendant and the guns, but an insufficient nexus between the other defendant and the guns. Two pistols and cocaine were found in a house used by the first defendant to store narcotics, and he was present at negotiations to purchase firearms for the conspiracy. These facts showed his constructive possession of the two pistols and that he reasonably could foresee the use of the seized firearms in the course of the conspiracy. However, the other defendant was different. There was no evidence that he ever visited the house from which the two pistols were seized. His sole contact with firearms was his presence at the meeting in which the purchase of firearms was discussed. However, there was no evidence that any firearms were actually purchased at that meeting, or that defendant ever witnessed another member of the conspiracy using or carrying a gun. U.S. v. Ramos, 71 F.3d 1150 (5th Cir. 1995).
5th Circuit rejects presumption that police officer carried firearm during drug crime. (286) Defendant, a police officer, was convicted of cocaine and money laundering charges. The Fifth Circuit reversed a § 2D1.1(b)(1) enhancement which was based on the presumption that defendant, as a police officer, was assigned a firearm. Apart from the presumption, there was no evidence that defendant possessed a firearm during the offense. Although the FBI found 90 guns in defendant’s residence, they found no drugs or drug paraphernalia. There was no evidence of defendant’s drug trafficking activities other than defendant’s own statement, which pursuant to a plea agreement, could not be used against him. U.S. v. Siebe, 58 F.3d 161 (5th Cir. 1995).
5th Circuit remands for specific finding where defendant contested gun possession. (286) When defendant was arrested, a gun was found in his house. The presentence report claimed that his sentence should be enhanced by two levels under 2D1.1, but defendant claimed the gun belonged to his roommate. The district court enhanced the offense level, but did not explicitly find either that defendant possessed the gun or that he was responsible for another’s possession of the gun. The 5th Circuit held that the district court therefore had failed to comply with the Rule 32 requirement of a specific factual finding on contested matters. U.S. v. Pofahl, 990 F.2d 1456 (5th Cir. 1993).
5th Circuit reverses enhancement for possession of gun during offense for lack of specific findings. (286) The district court added two points to defendant’s base offense level for involvement of firearms in the offense. There was no evidence that defendant had any knowledge of the weapons, which belonged to co-defendants who resided elsewhere. The 5th Circuit reversed the enhancement and remanded for specific findings by the district court as to whether the facts justified such an enhancement. U.S. v. Rivera, 898 F.2d 442 (5th Cir. 1990).
5th Circuit rules increase in offense level for possession of firearm during drug offense was proper. (286) Defendant pled guilty to distributing approximately 20 ounces of cocaine to an undercover agent. The district court increased the guideline range by two levels due in part to the defendant’s possession of a firearm during the offense. The gun was found in a post-arrest search of his van, which was parked outside his hotel room, the site of the transaction. The 5th Circuit held that firearm use of possession per se in a drug offense is a permissible basis for enhancement under § 2D1.1(b)(1). The enhancement is not dependent on whether the weapon is carried legally, and constructive possession is sufficient. U.S. v. Otero, 868 F.2d 1412 (5th Cir. 1989).
6th Circuit reverses enhancement for firearm found in house with meth lab. (286) Defendant was the cook for a methamphetamine operation. When police officers searched the house where the methamphetamine was produced, they found the drug lab in a bedroom. In a backpack in the living room, the officers found two firearms. At defendant’s sentencing for conspiracy to manufacture methamphetamine, the district court enhanced defendant’s sentence under § 2D1.1(b)(1) based on the firearms found in the living room. The district court found no evidence that defendant had ever possessed the firearm, but held that it was reasonably foreseeable that a conspirator would possess a firearm given the substantial quantity of methamphetamine being produced in the house. The Sixth Circuit rejected the government’s argument that the enhancement should apply unless it was “clearly improbable that the weapon was connected with the offense,” and held that the district court committed clear error in finding that defendant reasonably could have foreseen that a coconspirator would possess firearms. U.S. v. Woods, 604 F.3d 286 (6th Cir. 2010).
6th Circuit rejects firearm increase based on gun found in glove compartment of car defendant was driving. (286) Defendant was arrested after he drove to a parking lot to meet a drug courier. The district court applied a § 2D1.1(b)(1) firearm increase based on a loaded gun found in the glove compartment of the car that defendant had driven. However, the government presented no evidence at sentencing that defendant owned the gun, owned the car that he was driving, or even knew that the gun was in the car’s glove compartment. The gun was not used, displayed, or otherwise involved in the meeting between defendant and the courier. Furthermore, the authorities did not lift fingerprints from the gun to determine whether defendant had ever handled the weapon. Finally, defendant was not the sole occupant of the car. Given the complete lack of evidence that defendant actually or constructively possessed the firearm that was in the car glove compartment, the Sixth Circuit concluded that the § 2D1.1(b)(1) increase was clearly erroneous. U.S. v. Lucas, 282 F.3d 414 (6th Cir. 2002), overruled on other grounds by U.S. v. Leachman, 309 F.3d 377 (6th Cir. 2002).
6th Circuit rejects enhancement for gun found in dresser drawer below cocaine. (286) Police searching defendant’s apartment found a small plastic bag containing crack cocaine and a digital pager sitting on a corner of a dresser. In a drawer below the cocaine, the officers found a semi-automatic pistol and a fully-loaded magazine. The 6th Circuit upheld the district court’s refusal to impose an enhancement under section 2D1.1(b) for possessing a firearm during a drug transaction. The district court’s finding that the pistol was not connected to the drug offense was based on the evidence at trial as a whole. Given the appellate court’s deference to the district court with respect to applying the guidelines to the particular facts of a case, this finding was not clearly erroneous. U.S. v. Peters, 15 F.3d 540 (6th Cir. 1994).
6th Circuit finds defendant could not foresee that his co-conspirator would be armed. (286) Defendant accompanied his cousin on a trip to purchase methamphetamine and was convicted of conspiracy to possess methamphetamine. The 6th Circuit reversed an enhancement under section 2D1.1(b)(1) for a gun under the front seat of the cousin’s car, finding no evidence that defendant could foresee that his cousin was armed. The gun was completely hidden from defendant’s view. Defendant testified that he considered his cousin “small time” and it never occurred to him that his cousin would resort to violence. Defendant said he believed he was along for company, not to provide protection. Defendant’s admission that he knew sometimes his cousin carried up to $1,000 when buying drugs, and that he guessed “big-time dealers” probably tried to do bodily harm was not enough, by itself, to sustain the enhancement. U.S. v. Cochran, 14 F.3d 1128 (6th Cir. 1994).
6th Circuit rejects firearm enhancement for marijuana grower’s hunting rifles. (286) Defendant ran a sophisticated marijuana growing operation in his home. The 6th Circuit reversed an enhancement under § 2D1.1(b)(1) for three hunting rifles in defendant’s home. The rifles were found in the main part of the house while the plants were grown in a “secret room” in the basement. Two rifles (one operable but unloaded, one disassembled and inoperable) were in the living room, and one loaded rifle was found in the bathroom. Defendant said that only the rifle in the bathroom belonged to him and that he used it to hunt deer. In fact, he had killed a deer from the bathroom window the day before. One of the rifles in the living room was disassembled, which supported defendant’s claim that he was repairing it for a friend. There was no ammunition for the other gun, which supported defendant’s claim that it did not belong to him. Finally, there was no allegation that defendant was selling drugs from his home. U.S. v. Zimmer, 14 F.3d 286 (6th Cir. 1994).
6th Circuit rejects enhancement based on co-defendant’s possession of weapon. (286) Three defendants challenged their enhancement under guideline section 2D1.1(b) for possession of a firearm during a drug trafficking crime. The 6th Circuit affirmed the enhancement for two of the defendants, but reversed it for the third. The first defendant admitted to police that he had control over the pistol found in the apartment that served as headquarters for the drug operations. The second defendant was a co-conspirator of the first defendant, and the possession of the weapon was reasonably foreseeable. However, the enhancement could not stand for the third defendant, because he did not plead guilty to conspiracy. Although this distinction would be irrelevant under the current guidelines, it was relevant under the 1988 version of section 1B1.3. Because the third defendant’s conviction was not for conspiracy, the government was required to demonstrate that the defendant possessed the weapon himself or aided and abetted the possessed of the firearm by another. Judge Jones dissented in part. U.S. v. Tisdale, 952 F.2d 934 (6th Cir. 1992).
6th Circuit reverses firearm enhancement for unloaded gun found in locked safe in defendant’s house. (286) Police discovered two locked safes in defendant’s basement. One safe contained three kilograms of cocaine, $19,000 in cash and some jewelry. The other safe, located about 12 feet away from the first safe, contained an unloaded .22 caliber single-shot Derringer. The 6th Circuit reversed an enhancement under guideline § 2D1.1 based upon defendant’s possession of a firearm during a drug trafficking crime. First, the gun was not the normal type of firearm associated with drug activity, but was an antique-style Derringer. Defendant testified that he purchased the weapon at a flea market as a collector’s piece. Second, the gun was not loaded and no ammunition was found in defendant’s home. Finally, the gun was located in a safe which did not contain drug paraphernalia and was not located close enough to the drugs to infer a relationship. Thus, it was clearly improbable that the weapon was connected with defendant’s drug offenses. U.S. v. Garner, 940 F.2d 172 (6th Cir. 1991), superseded by amendment to §2D1.1, see U.S. v. Montgomery, 14 F.3d 1189, 1198 n.9 (7th Cir. 1994).
6th Circuit reverses where disparate sentences resulted from inconsistent application of guidelines. (286) Four defendants engaged in a conspiracy to sell drugs. Two of the defendants were arrested when they sold drugs to an undercover agent, and a gun was allegedly found in their possession at the time of sale. At trial these two defendants were charged with carrying a firearm in relation to a drug trafficking offense. One defendant was acquitted and a mistrial was declared as to the other. The sentences of the two co-defendants not present at the sale were enhanced under guideline § 2D1.1(b)(1) for possessing a gun during a drug trafficking offense. The 6th Circuit reversed, ruling that the district court’s inconsistent application of the enhancement created a disparity which the guidelines seek to avoid, particularly when the enhancement is applied against two conspirators who did not commit the conduct and not against the conspirator who allegedly did commit the conduct. U.S. v. Williams, 894 F.2d 208 (6th Cir. 1990).
7th Circuit reverses enhancement based on co-conspirators’ gun possession. (286) Defendant was involved in a drug trafficking conspiracy for about 14 weeks out of the 27-month conspiracy. He challenged a § 2D1.1(b)(1) sentencing enhancement for possession of firearms by his co-conspirators. The Seventh Circuit ruled that the enhancement was not supported by the record. The court did not err in concluding that certain conspiracy members possessed firearms as part of the conspiracy. However, the court relied on several irrelevant facts in ruling that defendant should have reasonably foreseen his co-conspirator’s gun possession. While co-conspirator Daniels told agents he purchased guns for other members of the conspiracy to use, there was no evidence that defendant ever heard Daniels make a statement even close to this effect. Although defendant admitted seeing a rifle at Daniels’s home during the time he was a member of the conspiracy, there was no evidence that Daniels’s home was the base of the conspiracy’s drug distribution activity, or that defendant saw drugs at Daniels’s home. Although defendant knew that co-conspirator Clay possessed a gun, Clay was arrested for threatening his girlfriend with a gun, not for drug activity. U.S. v. Block, 705 F.3d 755 (7th Cir. 2013).
7th Circuit rejects dangerous weapon increase for knife kept in truck by electrician. (286) Police pulled over defendant’s van as part of a drug investigation. The officers observed a knife in a leather sheath in plain view by defendant’s foot. They also found a quantity of powder cocaine inside the car’s interior wall. At sentencing, defendant testified that he was an electrician, and he kept the knife in his car and used it to strip wires. He described the knife as a little pocket knife in a little leather case and stated that the knife was on the console between the seats of the van. The district court applied a § 2D1.1(b)(1) dangerous weapon enhancement, noting that officers reported that the knife was located by defendant’s foot, not in the console, and that the knife was in a leather sheaf, not a small case. The Seventh Circuit held that the court clearly erred in applying the dangerous weapon increase, finding neither discrepancy cited by the court significant. The court did not explain why the knife’s location on the floor (rather than the console) made it more likely that it was used in connection with defendant’s offense. The court also appeared to misconstrue the definition of a sheath, suggesting that the knife was larger than defendant alleged. Another factors that weighed in favor of reversal was the fact that the police officer who stopped defendant saw the knife, made note of it, but did not confiscate it. Since they were investigating defendant on drug charges, and in fact found drugs in his car, this indicated that the officers did not believe that the knife was relevant to defendant’s drug offense. U.S. v. Franklin, 484 F.3d 912 (7th Cir. 2007).
7th Circuit says drug offense does not show foreseeability of cohort’s firearm possession. (286) Defendant and an associate “cooked” methcathinone a number of times in the associate’s trailer. The district court applied a 2D1.1(b)(1) enhancement, finding the associate possessed a gun at all times during the manufacturing process, and that this possession was reasonably foreseeable to defendant. The Seventh Circuit reversed, holding that both findings were clearly erroneous. The court relied solely on the associate’s girlfriend’s statement that the associate always carried a gun with him. However, this statement was made two months after the conspiracy ended. There was no evidence that the associate possessed the gun during “cooks” in question. Moreover, even if the associate possessed the gun, the government never showed that it was foreseeable to defendant. The mere risk involved in drug manufacturing does not establish the reasonable foreseeability of a concealed firearm absent other evidence. U.S. v. Vold, 66 F.3d 915 (7th Cir. 1995).
7th Circuit reverses weapon enhancement because defendant did not possess weapon during the offense of conviction. (286) Defendant sold four ounces of cocaine to a DEA agent. Over a month after the initial sale, defendant met with the agent to sell him a kilogram of cocaine, but rather than provide the kilogram, defendant attacked the agent with a meat cleaver and attempted to steal the agent’s money. Defendant pled guilty to the four ounce cocaine sale. The 7th Circuit reversed an enhancement under guideline section 2D1.1(b)(1) for possessing a dangerous weapon during the offense. Under the version of section 2D1.1(b)(1) in effect at the time defendant was sentenced, the weapon must be possessed “during the commission of the offense,” which means the offense of conviction. Defendant plead guilty only to selling the four ounces of cocaine to the agent, while the attack on the agent took place over a month later. U.S. v. Baldwin, 956 F.2d 643 (7th Cir. 1992), appeal after remand, 5 F.3d 241 (7th Cir. 1993).
7th Circuit rules possession of weapons by buyers of drugs does not justify departure in seller’s case. (286) The trial court departed from the guideline range on the ground that the Sentencing Commission did not adequately consider that a drug dealer would sell drugs to persons armed with firearms. Applying the “unreasonable” standard of 18 U.S.C. § 3742(d), the Seventh Circuit found this rationale to be unreasonable, given the common occurrence of drug dealers possessing firearms. Section 2D1.1(b)(1) recognizes this by providing for a two point enhancement of the base offense level when a defendant possesses a firearm during commission of a drug offense. Thus, the Commission adequately considered this factor. Because the defendant did not posses the weapon and he was not charged with possession of the weapon under a Pinkerton theory, the departure was unwarranted. U.S. v. Missick, 875 F.2d 1294 (7th Cir. 1989).
8th Circuit finds insufficient record to support firearm enhancement and denial of safety valve relief. (286) Defendant worked for a drug dealer that sold drugs to a confidential informant. During the transaction, the dealer directed defendant to pick up the “stuff” at another location. Defendant returned to the dealer’s house carrying a paper bag containing drugs. The informant testified that defendant was carrying a handgun in his back pocket, and that defendant gave the bag to the dealer, who removed the drugs and gave them to the informant. The informant testified that defendant then removed the gun from his pocket and placed it on a table. The informant then paid $800 for the drugs, another $800 for the gun, and the dealer gave the firearm to the informant. In challenging a firearm enhancement, defendant pointed out that the search warrant affidavit reported that the firearm was in the brown paper bag not in defendant’s pocket. The district court did not resolve this dispute, finding that the dealer had possessed the gun and that defendant was accountable for the dealer’s possession. The court applied a two-level firearm enhancement under § 2D1.1(b)(1) and found that the firearm possession made him ineligible for safety valve protection. The Eighth Circuit reversed. If the informant’s testimony was to be believed, there was ample evidence to find that defendant could reasonably have foreseen that the dealer would possess a firearm in connection with the drug conspiracy, and also that defendant himself knowingly possessed the firearm. But the court made no finding about the informant’s credibility, relying instead only on undisputed evidence that the gun was possessed by the dealer. The court did not determine whether the dealer’s possession of the firearm was reasonably foreseeable to defendant. U.S. v. Delgado-Paz, 506 F.3d 652 (8th Cir. 2007).
8th Circuit rejects increase where no evidence defendant knew about co-conspirator’s gun possession. (286) For several months, defendant “fronted” methamphetamine to Baccam, and would receive payment after Baccam sold it to his buyer, Hernandez. However, Hernandez began cooperating with police, and arranged to meet Baccam for another delivery. Police arrested Baccam when he approached the meeting place, recovering from his car three pounds of methamphetamine and a loaded .38 pistol. Defendant was arrested later that evening on unrelated charged, but police later learned of defendant’s involvement in the drug conspiracy. The Eighth Circuit reversed a § 2D1.1(b)(1) firearm increase based on co-conspirator Baccam’s possession of the firearm. When police arrested Baccam, defendant was across town in a hotel room. The government did not present any evidence that defendant knew or should have known Baccam carried a gun when he delivered drugs to Hernandez. Such knowledge could not be inferred based solely on the nature of drug dealing. U.S. v. Lopez, 384 F.3d 937 (8th Cir. 2004).
8th Circuit rejects increase based on gun possession a year before drug offense. (286) The government argued that once defendant’s § 924(c) conviction for using a firearm during a drug transaction was reversed, the district court should have enhanced defendant’s drug sentence for his possession of a dangerous weapon under USSG § 2D1.1(b)(1). However, the government did not raise this issue in its brief in the district court. Moreover, the government did not offer any evidence supporting the enhancement. Although the PSR contained a statement that defendant possessed a gun in September 1988, his drug offense occurred a year later. Accordingly, the Eighth Circuit affirmed the district court’s refusal to apply the enhancement. U.S. v. Johnson, 260 F.3d 919 (8th Cir. 2001).
8th Circuit refuses to apply enhancement for gun found in cab of truck hauling marijuana. (286) During a safety inspection of defendant’s truck, police discovered 300 pounds of marijuana stashed inside a false compartment in the trailer. Police also found an unloaded 12-gauge shotgun under a mattress in the sleeping compartment of the truck’s cab. The district court refused to apply a § 2D1.1(b)(1) firearm enhancement, finding the government failed to prove that the gun discovered in defendant’s truck was connected with his criminal activity. The Eighth Circuit held that the district court did not clearly err in finding that the shotgun was unconnected to the drug trafficking offense. Defendant testified that he purchased the shotgun long before he received an offer to transport the marijuana and that he never intended to use the gun to protect his cargo. He asserted that he purchased the gun to protect himself during overnight truck driving trips following an attempted break-in of his sleeping compartment while he was asleep. The government did not present any evidence to discredit defendant’s assertions, and the district court found defendant’s testimony credible. U.S. v. Hernandez, 187 F.3d 806 (8th Cir. 1999).
8th Circuit rejects firearm enhancement for lack of nexus between weapons and drug crimes. (286) Defendant pled guilty to conspiring to distribute cocaine. Three firearms were seized from defendant’s residence 37 days after the last known drug transaction. The parties stipulated in a plea agreement that defendant was not subject to a § 2D1.1(b)(1) enhancement because the seized weapons were to be used in connection with defendant’s legitimate business. Despite defendant’s and the government’s objection, the district court imposed a § 2D1.1(b)(1) enhancement. The Eighth Circuit reversed for lack of evidence that the weapons were present during any illegal activity. The burden is on the government to establish the relationship between a defendant’s possession of a firearm and the drug crimes he has committed. Here, the government presented no such evidence. U.S. v. Shields, 44 F.3d 673 (8th Cir. 1995).
8th Circuit remands for finding on nexus between firearm and drug distribution. (286) Defendant pled guilty to a single act of cocaine distribution on July 1990, and money laundering from January, 1988, through June, 1990. Defendant received a firearm enhancement under section 2D1.1(b)(1) based on a firearm seized from him in September, 1991. The 8th Circuit remanded. To support the enhancement, the government must first show that the weapon was present, and second, that it was not clearly improbable that the weapon was connected with the offense. Here, the firearm’s connection to the offenses was not readily apparent, and the district court made no finding as to whether the government had established this connection. U.S. v. Matthews, 5 F.3d 1161 (8th Cir. 1993).
8th Circuit reverses enhancement where weapons found 2-1/2 months after last drug transaction. (286) Defendant made four drug sales to an informant between September to November 1990. Two sales took place at a business co-owned by defendant, and two occurred elsewhere. Two and a half months later, police seized three weapons from defendant’s residence and one weapon from his business. The 8th Circuit reversed a weapons enhancement under section 2D1.1(b). There was no temporal or spatial relationship between defendant’s drug trafficking and the weapons seized in his home. No drug transactions ever occurred there and no drugs or drug paraphernalia were discovered in the house. The weapon found in defendant’s business also did not support the enhancement even though two drug transactions took place there several months earlier. There was no evidence that the firearm was possessed by defendant or was present at the time of the drug transactions. U.S. v. Bost, 968 F.2d 729 (8th Cir. 1992).
8th Circuit reverses enhancement based on possession of a firearm. (286) At the time of defendant’s arrest, three weapons were found in defendant’s home: 1) a cap and ball pistol; 2) a shotgun; and 3) a .22 caliber rifle. Defendant’s sentence was increased for possession of a firearm. The 8th Circuit reversed, finding it clearly improbable that the weapons were connected with the offense. The cap and ball pistol was a late 19th century firearm that required several steps to fire. Evidence showed it hadn’t been fired in over a year and no firing caps were available to fire it. The two other weapons were found in the room of defendant’s son (on the floor, next to his bed). Although the room was unlocked and next to defendant’s room, defendant’s son had testified the weapons were his and were used for hunting. U.S. v. North, 900 F.2d 131 (8th Cir. 1990).
9th Circuit reverses firearm increase where defendant planned, but did not use, a firearm. (286) Defendant participated in a scheme to rob a stash house of a large quantity of drugs. During preparation for the robbery, defendant said that one of the people he had recruited had access to guns. In fact, the scheme was an undercover sting, and defendant was arrested when he arrived to commit the robbery. When defendant was arrested, he had no firearms. At his sentencing for conspiracy to commit a drug-trafficking crime, the district court enhanced defendant’s offense level by two levels under § 2D.1(b) for possessing a firearm during the offense. The district court did so because defendant intended to possess a firearm during the offense. The Ninth Circuit reversed, holding it was error to apply the enhancement solely because defendant planned on using a firearm. U.S. v. Briggs, 623 F.3d 724 (9th Cir. 2010).
9th Circuit reiterates that firearm enhancement requires proof that defendant knew of gun. (286) Defendant was convicted of drug offenses. At sentencing, the district court enhanced his offense level under § 2D1.1(b)(1) because he constructively possessed a firearm during the offense. The firearm was found on the day of defendant’s arrest in an accomplice’s bedroom. Evidence established that defendant had access to, and dealt drugs from, the bedroom, but it did not show that defendant knew of the firearm. The Ninth Circuit reiterated its decision in U.S. v. Kelso, 942 F.3d 680 (1991), that access to a firearm is not enough to support an enhancement under § 2D1.1(b)(1) and that the government must prove that defendant knew of the gun. U.S. v. Highsmith, 268 F.3d 1141 (9th Cir. 2001).
9th Circuit says 924(c) firearm sentence precludes two-level increase for any weapons within relevant conduct. (286) Defendant was sentenced to a five-year mandatory minimum consecutive sentence under 18 U.S.C. § 924(c) for carrying a firearm during a drug trafficking offense. The district court also increased his sentence by two-levels based on two guns he provided to his co-defendants. On appeal, the Ninth Circuit reversed, holding that a November 1, 2000 amendment to USSG § 2K2.4, Note 2, clarifies that a defendant who is sentenced under § 924(c) cannot have his sentence on the underlying drug offense increased for any explosive or weapon, including weapons for which the defendant would be accountable under § 1B1.3 (relevant conduct). The court noted that in light of this amendment, prior decisions in U.S. v. Willett, 90 F.3d 404, 405 (9th Cir. 1996), U.S. v. Rodriguez, 65 F.3d 932 (11th Cir. 1995) and U.S. v. Washington, 44 F.3d 1271, 1280-81 (5th Cir. 1995) are no longer good law. Moreover, the amendment is retroactive because it is clarifying and is included in § 1B1.10 for retroactive application. U.S. v. Aquino, 242 F.3d 859 (9th Cir. 2001).
9th Circuit says patrolling a meth lab with a loaded gun was not “using” it. (286) When the police arrived to execute search warrants on defendant’s meth laboratory, he heard noises outside, drew his gun, clicked the safety off and went patrolling on his apartment balcony. After the officers identified themselves, he dropped the gun. It was found with a round in its chamber, ready to fire. A divided Ninth Circuit held that because the officers were unaware of the pistol until after defendant was arrested, he did not actually “use” the gun. The majority acknowledged that he could have been convicted of “carrying” the gun but since he only pled guilty to “using” it, his 28 U.S.C. § 2255 motion should have been granted. On the other hand, even though defendant pled guilty to “using” the gun, the majority said this was really just a “veneer” for admitting he “possessed” it. District Judge Carter vigorously dissented, arguing that defendant “used” the gun to protect his drug laboratory. U.S. v. Guess, 203 F.3d 1143 (9th Cir. 2000).
9th Circuit rejects firearm enhancement for lack of evidence of constructive possession. (286) Shortly after defendant’s arrest, police searched the three-bedroom apartment when he lived and from which he had obtained the cocaine. In one of the bedrooms they discovered two loaded handguns and a rifle. A woman lived in the apartment until June, 1994, when defendant and two other men moved in with her, staying in one of the three bedrooms. Another defendant occasionally visited the apartment. Part of the time, the father of the woman’s children also lived there. The woman moved out in mid-November, leaving the three occupants in charge, but it was not clear whether defendant stayed in one of the bedrooms where the guns were discovered. On this evidence, the Ninth Circuit reversed a two-level enhancement under section 2D1.1(b)(1) because it was “pure speculation” whether defendant, though a resident of the apartment, ever had possession or dominion of the firearms. The district court’s contrary finding was clearly erroneous. U.S. v. Cazares, 121 F.3d 1241 (9th Cir. 1997).
9th Circuit vacates conviction for “using” a gun, relying on Bailey in § 2255 appeal. (286) The police entered defendant’s apartment with his consent and seized the kilo package of cocaine he was holding. Upstairs, they found a machine gun in plain view. Defendant was convicted of using the machine gun during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1), and his conviction was affirmed on direct appeal. In this § 2255 appeal, the Ninth Circuit raised the § 924(c) issue sua sponte and ruled that the affirmance on appeal was not the “law of the case” because the Supreme Court changed the law in Bailey v. U.S., 516 U.S. 137 (1995). The panel ruled that the presence of the gun in plain view upstairs did not constitute “active employment” and therefore vacated the § 924(c)(1) conviction. The fact that the defendant might have been able to grab the gun was not sufficient to constitute “use” under Bailey. U.S. v. Garcia, 77 F.3d 274 (9th Cir. 1996).
9th Circuit reverses firearm enhancement for lack of evidence of dominion and control. (286) The firearm was located in the same bag, along with extra ammunition, as the narcotics intended to be distributed. The question was whether the defendant or his codefendant possessed the gun. The district court applied the enhancement for possession of a firearm during a drug trafficking offense under § 2D1.1(b)(1), because the defendant “had access to the weapon and had used weapons in the commission of prior offenses.” The 9th Circuit held that this was insufficient evidence of a relationship between the defendant and this weapon to establish constructive possession. The sentence was reversed. U.S. v. Kelso, 942 F.2d 680 (9th Cir. 1991).
10th Circuit reverses gun increase where defendant sold gun after drug sale. (286) Defendant sold two ounces of cocaine to an undercover agent. During the sale, the agent asked if defendant could sell him a gun. Later that day, after the drug transaction was completed, defendant obtained and sold a pistol to the agent. Defendant pled guilty to one count of distribution of cocaine and one count of being an illegal alien in possession of a firearm. The district court increased his sentence under § 2D1.1(b)(1), noting that even though there was no evidence the gun was carried during the drug transaction, the gun was sold the same day, to a known drug user, and the gun was of a type more likely to be used for personal protection than for hunting. The Tenth Circuit reversed for failure to show that defendant possessed a firearm in the vicinity of drug trafficking activity. Physical proximity is a touch¬stone of the § 2D1.1(b)(1) enhancement. U.S. v. Castro-Perez, 749 F.3d 1209 (10th Cir. 2014) No. 13-8069.
10th Circuit affirms firearm enhancement rulings. (286) Three defendants were convicted of drug charges. Two received an enhancement under section 2D1.1(b) for possession of a firearm during a drug crime and the third did not. The 10th Circuit affirmed both rulings. The trial court found there was a difference between the first two defendants and the third defendant with respect to the weapon in the apartment: the first two defendants were in the apartment regularly and there was reason to believe they had knowledge of the weapon. For the limited time the third defendant was there, there was insufficient evidence that he had knowledge of the presence of the weapon. The enhancement was proper for the first two defendants even though they were acquitted by the jury of related firearms charges. Judge Seth dissented. U.S. v. Robinson, 978 F.2d 1554 (10th Cir. 1992).
11th Circuit rejects firearm increase for guns found in drug defendant’s house where no drug activity present. (286) A jury convicted defendant of distributing cocaine. The district court imposed a firearms enhancement under § 2D1.1(b)(1) based upon the fact that police found three pistols in defendant’s home when they arrested him. Defendant shared the home with at least three other adults, and the government introduced no evidence that possession of the pistols was unlawful. In addition, police found no evidence of drugs or drug paraphernalia in defendant’s house. The Eleventh Circuit reversed a § 2D1.1(b)(1) firearm enhancement. Not one witness said anything about defendant’s using or carrying a firearm during any of the drug transactions for which he was convicted. The government did not produce any evidence that defendant possessed the firearms in question here during conduct associated with drug-trafficking activities. The only evidence was that the police found three handguns in defendant’s home, where no one suggested that drug activities ever took place. The mere fact that a drug offender possesses a firearm does not necessarily give rise to the firearm enhancement. The government must show some nexus beyond mere possession between the firearms and the drug crime. U.S. v. Stallings, 463 F.3d 1218 (11th Cir. 2006).
11th Circuit rejects firearm increase for defendant also convicted under § 924(c). (286) The district court applied a § 2D1.1(b)(1) enhancement based on two weapons seized pursuant to a November 12, 1999 search warrant. The commentary to § 2K2.4 states, however, that a sentence imposed for a conviction under 18 U.S.C. § 924(c) accounts for any enhancement that would apply to the underlying offense based on any relevant conduct for which the defendant is accountable. Defendant contended that the October 23, 1998 and November 12, 1999 drug charges were relevant conduct to each other because they were part of the same course of conduct or common scheme or plan. The Eleventh Circuit agreed. Because defendant was convicted and sentenced for violating § 924(c) by possessing a firearm during and in relation to the drug-trafficking crime he committed October 23, 1998, and on remand would be sentenced for possessing a firearm on November 12, 1999, the district court was precluded from applying a weapon increase under § 2D1.1(b)(1) to the underlying drug charges. U.S. v. Timmons, 283 F.3d 1246 (11th Cir. 2002).
11th Circuit reverses § 2D1.1(b)(1) increase where gun was not located with drugs. (286) Police found 903 grams of cocaine and $18,000 in a mini-warehouse rented by defendant’s wife. At defendant’s residence several miles away, police found $4000, a key to the mini-warehouse, suitcases like the one with the cocaine, steroids, electronic “bug” detection equipment and two 9mm pistols. The Eleventh Circuit reversed a § 2D1.1(b)(1) enhancement because the government failed to show that the weapons were present for § 2D1.1(b)(1) purposes. Under U.S. v. Hall, 46 F.3d 62 (11th Cir. 1995), § 2D1.1(b)(1), the government must show by a preponderance that the firearm was present at the site of the charged conduct. Once this showing is made, the burden shifts to the defendant to show that a connection between the firearm and the offense was clearly improbable. The government’s assertion that the items found at the home linked the weapons to the site of the offense was immaterial. Defendant was sentenced only for possession, not conspiracy. The possession offense took place at the mini-warehouse. U.S. v. Cooper, 111 F.3d 845 (11th Cir. 1997).
D.C. Circuit rejects increase based on co-conspirator’s possession of weapons where no finding of scope of conspiratorial agreement. (286) Defendant pled guilty to drug conspiracy charges. The district court applied a two-level § 2D1.1(b)(1) increase because it found that defendant must have known that other individuals with whom he had been indicted regularly used guns. However, the district court made no explicit finding as to the scope of defendant’s conspiratorial agreement. The D.C. Circuit remanded. A court may not avoid its responsibility to “spell out” explicit findings by reasoning that defendant could be held responsible for the gang’s crimes because he pled guilty to a conspiracy and there was “only one conspiracy in this case.” To satisfy this circuit’s “strict procedural mandate,” the district court must link evidence to a specific finding as to the contours of defendant’s conspiratorial agreement before it can attribute any co-conspirators’ acts to him. U.S. v. Tabron, 437 F.3d 63 (D.C. Cir. 2006).
D.C. Circuit requires individualized findings for enhancement based on co-conspirator’s firearm possession. (286) Defendants participated in a massive drug conspiracy. They challenged a § 2D1.1(b)(1) enhancement based on firearms possession by other conspirators. The D.C. Circuit held that a defendant cannot be held accountable for a co-conspirator’s gun possession unless the district court makes the same individualized findings as for drugs possessed by co-conspirators. That is, the conduct must be within the scope of the defendant’s conspiratorial agreement and be reasonably foreseeable. The district court’s findings about reasonable foreseeability were adequate for several of the defendants. However, if there were separate hub and spoke conspiracies, the use of guns by participants in one hub could not be attributed to the participants in another. The question of whether the users of the guns and the defendants in this case were merged in a single agreement required a careful analysis that was not performed in this case. U.S. v. Childress, 58 F.3d 693 (D.C. Cir. 1995).
D.C. Circuit reverses firearm enhancement where defendant already received consecutive five year sentence for firearm conviction. (286) Defendant was convicted of various drug and weapons offenses, including using or carrying a firearm during the drug conspiracy in violation of 18 U.S.C. section 924(c). The D.C. Circuit reversed an enhancement to his offense level for the drug conspiracy charge under guideline section 2D1.1(b) because defendant had already received a consecutive five year sentence for the section 924(c) conviction. The five year consecutive sentence was imposed pursuant to guideline section 2K2.4. To avoid double counting, application note 2 to section 2K2.4 provides that where a sentence is imposed under section 2K2.4 in conjunction with a sentence for an underlying offense, any specific offense characteristic for the use, possession or discharge of the weapon is not to be applied. Thus, the imposition of the five year sentence for defendant’s use of the firearm during the conspiracy precluded the district court from counting defendant’s possession of the firearm as a specific offense characteristic for the same conspiracy. U.S. v. Harris, 959 F.2d 246 (D.C. Cir. 1992), abrogated on other grounds by U.S. v. Stewart, 246 F.3d 728 (D.C. Cir. 2001).